MADURAM v Huda

[2000] WASC 220

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MADURAM & ANOR -v- HUDA & ANOR [2000] WASC 220

CORAM:   MASTER SANDERSON

HEARD:   2 AUGUST 2000

DELIVERED          :   2 AUGUST 2000

FILE NO/S:   CIV 1681 of 1998

BETWEEN:   JOSEPH MADURAM

GLORIA MADURAM
Plaintiffs

AND

CATRIN NURUL HUDA
First Defendant

ANTONIO GIUSSEPPE RIZZO
Second Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Turns on its own facts

Legislation:

Nil

Result:

Statement of claim struck out

Representation:

Counsel:

Plaintiffs:     Mr G J O'Hara

First Defendant             :     Mr M N Solomon

Second Defendant         :     Mr M N Solomon

Solicitors:

Plaintiffs:     Kott Gunning

First Defendant             :     Gadens Lawyers

Second Defendant         :     Gadens Lawyers

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566

Lord v Spinelly (1991) 4 WAR 158

1. MASTER SANDERSON:  This is an application to strike out all or parts of the plaintiff's substituted statement of claim.  The claim itself relates to a loan allegedly entered into between the plaintiffs and the first defendant in or about March of 1998.  The loan itself or the loan agreement, the agreement which is said to have been entered into between the parties, is pleaded in par 6 of the statement of claim.

2. To my mind that plea is inadequate.  The pleading of the circumstances in which the agreement was reached ought be more completely pleaded.  This was not a point raised in any detail by the defendants in their written submissions, but to my mind the inadequacy of the plea in par 6 really is the root of the mischief which bedevils the pleading.

3. As I understand the structure of the pleading it is alleged that prior to the agreement being reached in March 1998 there were fraudulent misrepresentations made by the first defendant to the plaintiff.  As a matter of form I would have thought that it was appropriate to plead those representations prior to pleading the loan agreement, but leaving aside that question of form, when one turns to the allegedly fraudulent misrepresentations pleaded in par 9 it is not clear how the representations relate to the loan agreement itself.

4. For instance, it would appear from par 9(c) that representations made subsequent to the conclusion of the loan agreement were themselves fraudulent and somehow give rise to a remedy on the part of the plaintiffs.  Now, if it were the case that the loan agreement was entered into with the effect that from time to time advances would be made on certain terms and conditions and there were fraudulent misrepresentations about those terms and conditions, then that in itself may give rise to a separate cause of action.

5. However, if it is simply that there were fraudulent misrepresentations made as a consequence of those representations, the loan agreement was entered into and losses have been suffered consequent thereupon, I do not see what part further fraudulent misrepresentations made after the date upon which the loan agreement was made would play in the overall claim by the plaintiffs against the defendant.

6. In my view the claim itself may well be arguable.  That is to say, it may well be the case that moneys advanced under an agreement which was entered into upon fraudulent misrepresentations may perhaps be the subject of a constructive trust.

7. I think that so far as that is concerned, the position is at least arguable and if a pleading reflected that I would be minded to allow it - subject to actually seeing the detail of the pleading.  But as presently framed the statement of claim is confusing, embarrassing and is likely to delay a fair trial of the action.

8. I think that the appropriate course is to strike out the statement of claim in its present form and give leave to bring in a fresh minute.